Judge rules use of drug-sniffing dogs unconstitutional in checkpoint lawsuit

  • A U.S. Border Patrol agent checks a car on the Interstate 93 southbound lane on Sept. 28, south of Lincoln. A judge ruled Friday that police dogs used to sniff out drugs at a border patrol checkpoint on Interstate 93 last summer amounted to a violation of the state Constitution. Geoff Forester / Monitor file

Monitor staff
Published: 5/4/2018 11:59:48 AM

Police dogs used to sniff out drugs at a border patrol checkpoint on Interstate 93 last summer amounted to a violation of the state Constitution, a judge ruled, throwing out evidence against 18 defendants.

The American Civil Liberties Union of New Hampshire had challenged the drug charges against 18 people who were arrested after being stopped and searched by Customs and Border Protection agents in the town of Woodstock last year, about 90 miles from the U.S. border.

Federal agents used drug-sniffing dogs to “alert” them of suspicious vehicles, which would be diverted off the road and searched. The ACLU argued that the evidence from the federal checkpoint can’t be used in state prosecutions because the warrantless searches violated the state Constitution.

Plymouth circuit court Judge Thomas Rappa, Jr. agreed.

“This Court finds that while the stated purpose of the checkpoints in this matter was screening for immigration violations, the primary purpose of the action was the detection and seizure of drugs,” Rappa wrote.

“The CBP (border patrol) and the WPD (Woodstock Police Department) were working in collaboration with each other with the understanding that the WPD would take possession of any drugs seized below the federal guidelines for prosecution in federal court and bring charges in this court based on that evidence,” he later wrote. “The evidence was seized in violation of constitutional rights recognized by the New Hampshire Supreme Court.”

Lawyers for the ACLU argued the state must be able to prove a “reasonable suspicion of criminal activity” before a trained dog can be used to search a motor vehicle.

“These checkpoints flagrantly violated the New Hampshire Constitution and the Fourth Amendment,” said Gilles Bissonnette, legal director for the ACLU-NH, in a statement. “CPB and the WPD searched and seized hundreds, if not thousands, of the individuals during the summer tourist season without any reason to believe that these individuals had committed a crime. That’s not how a free society works.”

And it essentially means the case is finished, said Gabriel Nizetic, who was representing the state.

“If we can’t get the evidence in, we can’t prove there was contraband,” he said, noting it would be up to the U.S. Department of Justice to decide whether the ruling should be appealed.

While police said the checkpoint was set up to catch people attempting to cross the border illegally, the majority of offenses resulting from the checkpoint were drug-related. Thirty-three people were detained for immigration-related offenses, while 44 were charged with drug possession, mostly small amounts of marijuana, by either Woodstock police or state police.

The state argued there was no state action because Woodstock police didn’t conduct the searches and that border patrol agents did not require probable cause to conduct searches. Prosecutors also argued that the “minimal intrusion” placed upon motorists in the checkpoints was justified due to “today’s world of mobile terrorists.”

Rappa agreed with the latter concept but ultimately disagreed with the state’s argument.

“The state failed to prove the necessity of subjecting each of the motor vehicles stopped at the checkpoints to searches by trained search dogs,” Rappa wrote.

If the border patrol’s desire was to detect immigrants stowing away in vehicles, that could have been accomplished with a visual inspection, Rappa wrote. He noted that no concealed humans were found.

But Nizetic said the judge did not address his argument that one of the cases the judge cited in his opinion is no longer relevant since the New Hampshire Supreme Court adopted a different standard in a more recent ruling in the 2017 case, State v. Cora.

Traditionally, the test has two parts: the first is that the plaintiff displayed an expectation of privacy, and the second is that this expectation is “reasonable.”

Rulings on how this applies to search dogs and cars have varied across the country, Nizetic said, but in New Hampshire, the Supreme Court decided that police do not need to obtain a warrant to enter an automobile when the vehicle has been lawfully stopped while in transit and the police have probable cause to believe that a plainly visible item in the vehicle is contraband, according to the Cora ruling.

Cora would apply here, Nizetic said, because it raises the question of, “If you’re traveling down an interstate, public highway, do you have a reasonable expectation of privacy with the smell outside the car?” he said. “But that analysis wasn’t used.”

Rappa did address probable cause and found none.

If state authorities, and not federal agents, had used the same technique of using drug-sniffing dogs at a roadside checkpoint, “the evidence would be inadmissible because there was no articulable reasonable suspicion that any of these defendants were involved in criminal activity prior to the initial dog search,” Rappa wrote.

The state has 30 days to appeal the ruling.

(Material from the Associated Press was used in this report. Caitlin Andrews can be reached at 369-3309, candrews@cmonitor.com or on Twitter at @ActualCAndrews.)



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